“refugee and asylum-seeking children face long delays accessing education after arriving in the UK, in many cases because schools are reluctant to offer them a place over fears they will lower GCSE results and affect school league tables.”

Asylum seekers applying to university cannot access student finance and are considered overseas students. As for adults, most barely survive on their £37.75 per week asylum support, and cannot afford to pay for classes or courses. Nevertheless, individuals routinely find opportunities to learn. Many value the chance to make progress and keep busy while other areas of their life may be ‘on hold’ because a decision on their asylum claim has not yet been made.

New Restrictions on Study

The Immigration Act 2016 brought a new regime of ‘immigration bail’ into force in the United Kingdom. As part of this regime, the powers of the UK Secretary of State for the Home Department (“the Home Office”) to impose restrictions on asylum seekers was expanded in Schedule 10 of the Act, including the right to restrict asylum seekers’ right to study.

Prior to Schedule 10 coming into force in January 2018, restrictions on asylum seekers routinely included work, residence and reporting. Although the new ‘immigration bail’ regime still imposes these restrictions, in thousands of cases a restriction (prohibition) on studying has now also been introduced.

Hope in learning

The stories of some of the individuals our firm has assisted over the past eight months demonstrate the range of objectives and experiences of those affected:

Sharif*, Henry and Farooq arrived in the UK as unaccompanied minors and were enrolled in school and then college. They were eligible for ‘leaving care’ support including a stipend and accommodation from the Local Authority if they remained in college until the age of 21, and were studying for GCSEs and on vocational courses at local colleges.

Josie came to the UK with her mother and brother, and won a competitive scholarship for asylum seekers in order to accept a place to study biomedical sciences at university. She hoped to build on her stellar A-level results and become a scientist one day.

Mustafa is a gifted illustrator, and wanted to improve his English so that once he is granted refugee status, he can study illustration at university and build on the many exhibitions and competitions in which he has already participated.

Ali is a victim of trafficking, who aspires to study Law and Policing at university in order, one day, to start an anti-trafficking organisation and help others in his situation.

Mary, another victim of trafficking, was encouraged to enrol in assertiveness, healthy eating and understanding anxiety classes at a college as part of her recovery, while she was on the waiting list for counselling.

Kit is a young mother, hoping to attend an English for Speakers of Other Languages (ESOL) course with crèche facilities at a church. She wanted to learn English to be able to care for her daughter better, navigate her world of supermarkets, buses, doctors and lawyers a little easier, and make friends among the other mothers and fathers.

All of the above were to have their ambitions thwarted, by being forbidden from studying.

From exceptional…

While the 2016 Act was being drafted, all indications were that any restrictions on study would be rare and exceptional. Keir Starmer MP, the then shadow immigration minister, put forward Amendment 201 in order to:

“seek to understand why a restriction on a person’s studies is to be included in the list of conditions, imposed by the Home Secretary, to which a person may be subject when on immigration bail”.

James Brokenshire MP, then immigration minister, responded by stating that:

‘[t]he power is not, as was suggested, about trying to deny education. If a child can lawfully access education services, we will not seek to disrupt that by using restrictions under the bail power to place a prohibition on them attending. We also do not intend to impose through the use of the power a blanket ban on asylum seekers accessing education. Where the power could have utility, however, is on specifying the place at which someone can study, for example. That would mean knowing where they are and saying that they are permitted to study, but only at a particular institution.”

During the Bill’s passage through the House of Lords, Lord Keen emphasised in relation to study restrictions that:

“this is an existing power used only in the most exceptional circumstances pertaining to terrorism”.

It is clear therefore from parliamentary discussions that the power to restrict study was intended to be used rarely and for specific purposes.

…to routine

However, when the relevant provisions came into force in January 2018, charities and asylum caseworkers saw widespread imposition of study restrictions affecting many individuals. The Home Office’s response to a freedom of information request reveals that between 15 January and 31 May 2018, of the 53,901 individuals given immigration bail forms by the Home Office, 12,642 (24%) individuals were prohibited from studying.

A blunt instrument

In response to a written Parliamentary Question in April 2018 querying the numbers and objectives of the study restrictions, the immigration minister Caroline Nokes replied that individuals could seek variations of the bail on reporting.

But this was not a solution.

After the new ‘immigration bail’ regime came into force, all of the individuals above were informed that they no longer had the right to study in the UK. No one asked about their plans to study or whether they were enrolled in studies at the time. No one explained the restriction, or provided any reasons for the change. Breaching immigration bail conditions is a serious matter – had they continued to study in breach of the conditions, their ‘non-compliance’ could have been held against them in their asylum claims.

To the courts

Many did not even realise that the restriction had been applied to them until it was spotted by their social worker or lawyer. Those who tried to request a variation at reporting centres were told to submit their requests in writing via their solicitors. However, even when asylum seekers’ legal representatives made requests in writing to the reporting centres for variation of bail conditions, these were ignored.

In our experience, the only way to remove the restrictions was to threaten the Home Office with court proceedings if they did not do so. In many cases this was not enough, and we were forced to issue judicial review proceedings, asking the High Court to make an urgent order for the study restriction to be removed.

Hope, dashed

Sharif, Henry and Farooq, whose support from local authorities was contingent on their remaining in education, were placed in a terrible position, caught between losing their local authority support (including their accommodation) or potentially breaching their bail conditions.

Mary was deeply concerned that the therapeutic courses she had been enrolled on as part of her recovery constituted ‘study’ for the purposes of the restriction.

Mustafa and Kit had to inform the ESOL administrators that they were unable to start the course, since they were not permitted to study.

Josie and Ali were told by the university that they had no right to study and their offers were withdrawn.

No grounds

According to the Home Office’s own policy on immigration bail, restrictions had to achieve the legitimate purpose of maintaining contact with individuals while their asylum claims were being processed, reducing the risk of individuals absconding. It is hard to countenance a situation in which restricting a person from studying could logically be said to be furthering this legitimate aim.

Indeed, when challenged in judicial proceedings or correspondence prior to commencing proceedings, the Home Office has conceded in every case, removing the restriction and failing to provide any reasons or defence as to why the restriction was imposed in the first place.

Some progress

On 8 May 2018, following media attention, a series of successful judicial challenges, and interventions via Parliamentary Questions (most notably from Baroness Hamwee, Liberal Democrat Spokesperson on Home Affairs) the Home Office issued an amended policy on immigration bail conditions.

The section on study restrictions is substantially amended. The new policy provides more guidance on which individuals should have study restrictions placed on them, clarifying that in most situations, asylum seekers should, and will, be allowed to study. The freedom of information request reveals that by the end of May 2018, the Home Office removed study restrictions from 4,709 individuals, presumably leaving 7,933 people (the rest of the 12,642) still restricted at the end of May 2018.

The response to the freedom of information request states that, following the revision of the immigration bail guidance:

“[a] process was introduced to identify potential cases where the study condition may have been applied incorrectly. Bail notices were re-issued to identified cases, and sent to the individual and their legal representation. This initial work concluded at the end of May 2018. An additional safeguard was introduced on 7 May 2018 into the bail consideration process; in the event a bail condition prohibiting study is to be applied, this must first be approved by an officer of at least Chief Immigration or Higher Executive grade. A letter was sent to NGO stakeholders so that they can encourage individuals who may have concerns to contact the Home Office to seek a variation of their conditions.’”

Despite this, we continued to receive referrals of individuals with study restrictions incorrectly and unreasonably applied to them.

Taking a mile

The study restriction saga is a prime example of the effects of the UK government’s ‘hostile environment’ policy. It shows how statutory powers, granted for a specific and restricted purpose, can take on a life of their own in the hands of a government which has vowed to make life difficult for those without legal status in the UK, blind to the consequences for asylum seekers and vulnerable individuals.

The saga also illustrates the vital role played by charities, MPs, the media, lawyers, support workers who raised the issue and advocated on behalf of those affected. It highlights the critical need for vigorous judicial policing of the boundaries of these executive powers in order to prevent unjustified and irrational limitations on individuals’ rights and freedoms.

*We have changed the names of our clients, in order to protect their identity